Saturday, February 17, 2007

Research money for displacement? Not likely.
Monday evening (2/12) NYU held a forum on "Housing and America's Future" to announce a $25,000,000 grant for research on housing from the MacArthur Foundation. The speakers included Shaun Donovan, the city's Housing Preservation and Development commissioner. I was struck by the rhetoric: where Denise Scott of the Local Initiative Support Corporation gave highest priority to "neighborhood preservation" in light of the rapid loss of existing affordable housing in the city, Donovan talked about "rebuilding communities" with inclusionary zoning. When I pointed out the tension between preservation and rebuilding, and the strong possibility that the displacement induced by rebuilding could result in a net loss of affordable housing especially since the mayor refuses to implement IZ without an upzoning (i.e, upscaling), Donovan replied that "growing the city" motivates the city's plans.

If the goal were affordable housing *and* community preservation, IZ would be offered without upzoning. So far as I can tell, the goal is upzoning, plain and simple; IZ is included in the upzoning solely to get support for neighborhood upscaling from affordable housing advocates committed to the construction of new units. The unfortunate effect of the mayor's carrot to affordable housing advocates has been to demonize community preservationists who see the upzoning as a threat to existing housing. Now that the 421a tax break in our district is going to require the construction of new affordable housing rather than the renovation and preservation of existing affordable housing, developers will have no incentive to renovate and preserve existing affordable housing.

Donovan's characterization of 80% market-rate and 20% affordable as creating or preserving "a mixed-income community" seemed to me an extreme of administrative cynicism. Others in the audience were likewise appalled.

Sunday, February 11, 2007

Hey friends -- I just revised the blog, adding an article on the rezoning of the LES/EV that I wrote for Tenant/Inquilino a while back. It presents the important issues more briefly and simply than "Zoning for Dummies" did. I've also rearranged "Zoning for Dummies" so that its chapters read in logical and chronological order.

I've added links -- Bob Arihood posted his photos of the interior of St. Brigid's on his site. Also check out what's happening in the neighborhood at Eric Ferrara's and Jim Power's

If you scroll all the way to the bottom you'll find an early entry that describes what this blog and LESRRD are all about and what kinds of activities we're involved in. I also fixed up the chart in "Contextual Height of the LES North of Houston" so the numbers are easier to read.

There've been some hopeful developments recently. People from all over are showing an interest in what's happening to the LES. We're networking with other neighborhoods that are experiencing similar community displacement and we're beginning to work together to preserve what's best about New York City before this place turns into one big glass-and-steel Duane Reade.

Will Lower East Side Rezoning Stop Gentrification?
By Rob Hollander

The Lower East Side/East Village is about to be rezoned. The plan, proposed by the Department of City Planning, is intended to preserve affordable housing and the neighborhood's character-but it also invites luxury development.

Under the neighborhood's current zoning, developers can build huge towers here, way bigger than the old historic tenements, which only rise to about 80 feet in height at most. Not only are these towers transforming the character of the neighborhood and its demographic, but such lucrative development opportunities are an incentive for developers to empty buildings of low-rent tenants and demolish existing housing to build these huge money-making towers. The more such towers are built, the more real-estate values surge as gentrification consumes the neighborhood. Chain stores and chic restaurants and bars follow, pushing out the mom-and-pop stores and all the local services that give the neighborhood its character and residential viability. It's a broad and deep threat to the community. The new zoning plan is designed to prevent this kind of out-of-scale development and keep developers at bay. But the new plan is not without controversy.

The plan represents two principles: community preservation and affordable housing. The preservation part of the plan provides a height cap on new development: an 80-foot maximum through most of the district. That would put an end to the super-tall towers, to the abuse of the community-facility bonus (if you include a space for community use-could be just a doctor's office-you are allowed to build higher) and the purchase of air rights (if a building nearby isn't as tall as it could legally be, you can buy their "air rights" and use their unused space to build your building even higher).

The affordable housing part of the plan provides a radical upzoning of Houston Street, Delancey Street, and Avenue D, with an incentive to build affordable housing. A developer can build a large, dense building (up to a floor-area ratio-FAR, the measure of building size-of 7.2) up to 120 feet high if 20 percent permanently affordable housing is included. The affordable housing doesn't have to be on the site of the development; it can be anywhere in the district and, if the development is at the border of the district, even a half mile outside the district. Alternatively, the developer can renovate existing housing and place it into permanent stabilization-that would also count as creating affordable housing. But if the developer doesn't build or create the 20 percent affordable housing, then they would be allowed to build only up to 5.4 FAR-a much smaller building. So the increased FAR provides an incentive for developers to devote 20 percent of their housing to affordable housing.

Both aspects of the plan raise questions. 80 feet is still much higher than a lot of buildings in the Lower East Side and East Village. There are three- and four-story buildings and lots of five-story tenements. Some people are worried that a landlord might want to empty a five-story tenement of tenants in order to demolish and develop an eight-story condo. And some critics have pointed out that it is harder to build tall buildings north of Houston Street under the current zoning than it would be under the new plan. Under current zoning, the developer must cobble together many lots-tall towers simply can't be built north of Houston on one or two lots. But under the new zoning, a developer can build eight stories as of right-without getting community board or city permission.

Currently, the East Village is zoned for a FAR of 3.44 without the community facility bonus. The new plan would allow a FAR of 4, which basically works out to one extra floor more than 3.44. But suppose you live in a small four-story building with a FAR of 3. Under current 3.44 zoning, it wouldn't pay for a developer to demolish your building just to add half a story. But in the proposed zone that allows a FAR of 4, your building could well become a target for redevelopment.

On the other hand, the new plan eliminates the community-facility bonus, which encouraged major developers to merge many properties wherever they could, buy air rights, and build to the sky. It is these large developments that are prevented by the new plan.

The affordable housing component is controversial for many reasons. In order to get the 20 percent affordable housing, the neighborhood must accept new buildings with 80 percent luxury housing. That radically alters the character of the neighborhood. Gentrification has already brought us nightlife strips which have driven out local services and mom-and-pop stores. Bars can pay higher rents than any other establishment save a bank, and banks and bars turn out to be very popular in chic neighborhoods full of new money. Gentrification also raises real-estate values, which adds to the pressure to evict low-paying tenants.

Under currently available programs, affordable housing is a kind of deal with the devil: Give developers what they want under the condition that they throw the locals some crumbs. But when you play with the devil, it's the devil who usually wins. The neighborhood gentrifies, more tenants are evicted, and more buildings are demolished. The result can be not a gain in affordable housing, but a net loss of affordable housing.

Community Board 3 has demanded of the city that the plan include anti-harassment and anti-demolition measures. But the Department of City Planning has so far refused, and such measures are far from perfect.

What we really need to save our neighborhoods are rent laws that protect affordable housing and a government that is willing to create or subsidize affordable housing directly without relying on developers to do the work that government is supposed to do itself. But we live in an age of triumphal capitalism where downsizing and privatization of government are in vogue and people are afraid to say that the emperor has given all his clothes to the developers.
(Hey -- gotta learn it sometime)



The Lower East Side/East Village is about to be rezoned. Why should that matter to you? Well, under the current zoning of the LES/EV, developers can build huge towers here, way bigger than the old historic tenements which only rise to about 80 feet in height at most. Not only are these towers transforming the character of neighborhood and its demographic, such lucrative development opportunities are an incentive for developers to empty buildings of tenants, demolish, and build more huge money-making towers. Chain stores follow. It's a real threat to the community. The new zoning plan is designed to prevent this kind of out-of-scale development and keep developers at bay.


Under the newly proposed zoning plan, developers MAY NOT BUILD ABOVE 80 FEET HIGH. That's a welcome improvement over current zoning. Imagine your'e a developer and you own a six story tenement -- most tenements built after 1879 rise at least six stories -- would it pay you to empty your building of all its tenants, raze the building to the ground and build luxury housing just to add two floors? It might be easier and cheaper just to leave the building as is and rake in the rents of all the current luxury decontrolled tenants.

The Department of City Planning's proposed 80-foot height cap puts a damper on new development and it ensures that all new developments will more or less fit in with their surroundings.

This is called "contextual zoning": it preserves the neighborhood context.

The zoning jargon you will hear for this fixed 80-foot height cap is "R7-A." The Department of City Planning has proposed R7-A (contextual zoning) for most of the LES district.

(The old zoning from the 60's seems to have been even better for the side streets than this proposed plan. It had a cap of about 50 feet for the side streets. But everything changed in 1994, when greater bulk and height were allowed.)


If you listen in on zoning discussions you'll hear a lot of talk about FAR -- Floor Area Ratio. It's how building size, or "bulk," is determined in zoning: you multiply the base of the property lot by the FAR and you get the total floor area you are allowed to build.

For example, on a standard 25-foot wide city lot 100 feet deep, an FAR of 1 would allow you to build either a one story building 25X100 feet or a 10 story building 25X10 feet. They both have the same floor area. Even though one is tall and thin and the other is broad and short, the overall floor space is the same.

(Actually, in Manhattan you have to leave a 30X25 foot back yard, so the short building could really only cover 70X25. But the developer could then add a 30X25 foot story on top of the 25X70 foot building to get the same full FAR of 1. It's this flexibility that makes FAR a useful measure.)

In a contextual zone, however, the bulk of a building is determined by a fixed maximum "building envelope." So no matter how skinny a building you design, in an R7-A zone you can't "pierce" the 80-foot height of the contextual envelope. Height is fixed, not flexible, in a contextual zone.

The R7-A zone comes with a 4.0 FAR. If you built straight up on every inch of allowable base, you'd get only about 6 stories out of such a low FAR. Remember, you're allowed to build 80 feet high in the R7-A. So the 4.0 FAR in this contextual zone is not very dense -- it doesn't allow construction on every available inch of space. But it does allow a developer some space for flexibility in design. S/he can build a narrower building with more yard space or, if constructing on a couple of lots assembled together, maybe include a nice courtyard to bring in more light, as long as the building doesn't exceed the height limit of 80 feet.

The DCP plan gets more complex -- Houston and Delancey and Avenue D are getting a 120-foot height cap if the developer includes affordable housing. And there's all sorts of complexities to affordable housing, but I'm saving all that for PART TWO of Zoning for Dummies.

Summary of Part One:

R7-A = 80 foot height cap on all new buildings (i.e., a contextual zone)

FAR = floor area ratio = formula for the overall bulk

The R7-A FAR = 4.0, not very dense -- it leaves some empty space for design flexibility.

Next chapter: Affordable housing / Inclusionary Zoning



Affordable housing is disappearing in Manhattan (and not just in Manhattan). Luxury decontrol has overtaken previously affordable havens like Stuy Town. Rising rents are forcing people out of their homes; communities are being decimated. Rentals in our neighborhood are filled with students and recent grads willing to share space with multiple roommates to meet exorbitant rents. Multiple payers push market rates even higher so that we have a kind of inflated rent zone in the LES that is supported by, and can only sustain, transient multiple renters. Such rents are prohibitive of permanence: they are accompanied by a loss of community and the proliferation of youth-oriented businesses -- bars and chain stores. We desperately need permanent affordable housing if the historic LES, with its ethnically mixed community, is going to survive as anything more than a campus nightlife strip.


In the world of triumphal capitalism, government is no longer expected to build housing. Instead, government gives incentives to private developers and hopes the developers do the work big government used to do. That's what inclusionary zoning is all about: trying to turn always robust American greed to good use.

IZ consists of a carrot and a stick. Government limits the FAR on development (the stick) but offers a bonus FAR (the carrot) if the developer will include some affordable housing. The typical IZ program includes 20% affordable, 80% market-rate (luxury). (This is the moment when you complain, "But that's just crumbs off the rich man's table!" Well, that's the world we live in -- FDR's face is on the dime, not the ten dollar bill.)

IZ can work as a disincentive to development if the stick is severe and the carrot small. That will preserve the neighborhood from development, but won't get you much affordable housing. And as rents rise towards luxury decontrol and preferential rents are being revoked (see Zoning for Dummies Part 3), merely preserving the buildings here in the community isn't enough to keep the community here in the buildings.

If you really want a significant contribution to affordable housing under IZ, you have to be willing to put up with a huge influx of luxury units -- for every four luxury units you only get one affordable unit -- and you need to offer the developer a box full of carrots in the form of a big FAR bonus. And that's how IZ opened the floodgates to development in other neighborhoods in which it has been implemented.

It all depends on how much affordable housing you want and how many luxury folks you are willing to put up with. Nothing against the wealthy -- great charm may be found among them -- but they bring with them huge glass buildings you don't want to live around, big banks you don't want to hang out in, restaurants you can't afford to eat at and stores you can't afford to shop in. And if you blink, you find that they've pushed out all the local spots you used to love that gave this place its character, which, btw, was based in its rich and long and diverse ethnic history, not on the latest whims of upscale fashion and conformity. Once you lose history and community, you can't get them back.

There's a fundamental tension in IZ between preservation and development. If we had better tenant protections, lower rent increases and no luxury decontrol, we might not be in this miserable bind where we have to beg for bones and depend on the devil for a house in his hell. But that's where we are: without IZ, no new affordable housing, just luxury, and, thanks to the deplorable new tenant laws, we're rapidly losing what affordable housing we have now.


The IZ affordable housing does not have to be built on the same site as the luxury market-rate units ("units" is dismal jargon for "apartments"). It can be built anywhere in the community district (and if the development site is at the border of the district, it can be even be built outside the district, within a half mile of the development). So you could conceivably see luxury units built at one tony end of the district and all the affordable units built far away, way over at the other end of the district in its poorest corner.

Housing Preservation and Development (HPD), which runs the IZ program, calls this, euphemistically, "flexibility."

There are, however, tax incentives for building affordable units into the luxury site. On the other hand, the bonuses for affordable housing can be sold by the developer, so one affordable housing developer can build affordable housing units and sell the bonus FAR to another developer who builds only luxury. That encourages off-site.


Assuming that large commercial streets could more easily sustain large development, our Community Board proposed two streets for IZ, Houston and Delancey. City Planning accepted these and added Avenue D. These three streets will not be zoned R7-A, but R8-A, which comes with a height cap of 120 feet, half again as high as the 80-foot R7-A cap.

The IZ component: without the affordable housing bonus, the FAR is 5.4. If you build 20% affordable housing, you get a bonus -- you can build up to FAR 7.2.

In other words, if you only build luxury housing (or don't buy the affordable housing bonus from an affordable housing developer), then you can't take much advantage of the 120-foot height of the lot. But if you do build affordable housing (or buy the affordable housing bonus from someone who has built affordable housing in the district), you can build much more densely in that same lot.

The Community Board has also asked DCP for IZ throughout the R7-A area: they've suggested a bonus of up to 4.6 FAR for affordable housing in R7-A. The 4.6 FAR would yield a densely built structure within the 80-foot height cap. Alternatively, it's been suggested that a better incentive would be to lower the luxury R7-A FAR way down to 2, and allow an FAR of 4.0 if affordable housing is included. That would be a lot like mandatory 80/20 and yield less bulky structures. We don't know yet what DCP thinks of any of these R7-A IZ proposals.

There's one last important piece to this puzzle. Renovating existing low-income housing counts as building affordable housing. A developer, instead of building new affordable housing, can renovate a building where the rents on average are affordable ("affordable" is defined as at or below 80% of the Area Median Income (AMI) level -- NYC AMI=$70,900, low-income=$56,700 roundly). Then those apartments become permanently "affordable," meaning just that they can never be luxury decontrolled -- they remain permanently within Rent Stabilization, the rent increases determined, along with all stabilized rents, by the Rent Stabilization Board. And the cost of those renovations is not passed on to the tenants.

The consequences of these proposals depend largely on what there is available to develop. That's the topic of Zoning for Dummies Part Three: Impact, soft sites, protection.

The last part, Part Four, will be devoted to a general assessment of the DCP proposal including items to watch out for in the final proposal to be presented in October and what happens to the proposal after its October presentation.


IZ entails an FAR restriction on the construction of market rate housing along with an FAR bonus if the developer includes 20% affordable housing.

The affordable units and the market-rate units can be built on different sites.

The affordable units can be mere conversions of current low income housing to permanent low income status (with renovations).

DCP proposes IZ on Houston, Delancey and Avenue D, within a contextual R8-A zone, 120 foot height cap.
Without inclusionary housing: FAR 5.4.
With inclusionary housing (20% affordable housing): FAR 7.2.

Affordable = 80% of NYC average median income (AMI).



Contextual zoning is intended to minimize impact -- it preserves the context. IZ within a contextual zone should therefore be harmless, as long as the contextual zoning features are strictly retained. But the 120-foot-height zoning plan for Houston and Delancey and Avenue D is contextual in name only. The Houston/Delancey/D context is not currently 120 feet high. It's mostly 60-75 feet high. So the plan contemplates a substantial change on these three streets.

There's no question that IZ is controversial. Many complain that 20% affordable housing is too little to offset the impact on the community of 80% luxury; others complain that while the luxury units are sure to be built, the affordable units may never get built: developers sometimes don't bother to take the IZ bonus. IZ upzoning, intended to attract affordable housing by allowing larger developments, could turn out to be merely a give-away to developers and an invitation to overdevelopment. And if renovating existing affordable housing counts as building affordable units, it seems like the whole program is, at best, treading water.

IZ in itself -- without the bonuses -- is a disincentive to development; IZ steals away 20% of the developer's luxury profits. It's the incentive give-aways that accompany IZ that pose a problem to the future of the neighborhood context. The incentives can be an open invitation to developers to transform neighborhoods wholesale. That's what happened to Williamsburg. There were many sites available to develop, especially by the East River; huge towers rose, the demographic shifted and now they are dealing with a lot of "secondary displacement" -- residents and businesses being moved out as a result of a radically shifting neighborhood, rising real estate values, aggressive landlords and encroaching development. The big question for the LES: can Williamsburg happen here?


"Soft sites" is jargon for lots that are available for development. They would include abandoned lots, parking lots and community gardens. But they also might include one-story storefront structures.

Consider Katz's Deli: very large storefront, nothing built above it, no rent stabilized tenants to evict, no rent control tenants who are nearly impossible to evict and have to be bought out at the price of their choosing; Katz's Deli, a developer's dream site. But, you say, how could we lose Katz's Deli -- it's historic, it's famous, it's unique, it's high quality, everyone loves Katz's?!?

Well, look around, the Second Avenue Deli is already gone.

Houston Street east of Second Avenue is full of such single story storefront sites. Take a look at Houston between A&B east of Red Square. A string of one story storefronts.

That's why this part of the DCP plan has some of us worried. The LES west of the projects is a neighborhood still vulnerable to secondary displacement. And if real estate values rise, the projects themselves will be threatened. The area of the historic LES sandwiched in between 120 foot developments on Delancey and Houston will likely be transformed.

In comparison with Williamsburg, the LES offers far fewer soft sites, and the height limits in the LES plan are in general more restrictive. But beware: the original Williamsburg plan did not include the huge towers that are destroying their neighborhood and community. That was the city's idea and the City Council approved. It's to prevent such manipulations from above that I'm trying to get you, the public, involved in the process. The CB all alone cannot leverage the dark politics of our City Council, with its pro-development Council Speaker. Only a watchful, informed, vocal public can.


The inclusion of Avenue D in the DCP plan raises a red flag. Since the affordable units don't have to be built on-site, it is conceivable that all the luxury units could be stacked on Houston and Delancey and all the affordable units on D, facing the projects. That looks like red-lining -- ghettoizing Avenue D. Whether or not this was DCP's intention -- there's no way of knowing -- it could be the result.

On the other hand, the city may have a very different intention in zoning D for IZ. This may be their attempt to gentrify the projects' area. But gentrification is a double-edged sword: it brings needed money and safety, but once a neighborhood is identified as monied and safe, the pressure is on to displace the old community with upscale residents. People are willing to pay up the wazoo to live in Manhattan -- developers will look at the projects the way they are looking at Stuy Town now, and government commitment to projects is waning.


Tenant protections have eroded dramatically over the last five years. Albany is largely responsible. Unfortunately, our soon-to-be governor promises to be no better than the last on this count. Spitzer openly favors eminent domain -- allowing the government to appropriate property for the benefit of private development -- and that's about as pro-development as you can be.

Today, rent stabilized tenants are easier than ever to evict. The new 2003 rent laws destabilized tenancy with luxury decontrol, the arbitrary revocation of preferential rents and the end of triple damages:

Suppose you moved into your rental during the Clinton recession of the early 90's. Your rent stabilization ceiling rent -- the legal limit your landlord could charge -- was way above market rate (what anyone would be willing to pay). So he gave you a "preferential rent" -- a mark-down to market-rate, say, $900 for three rooms, although by the stabilization ceiling he could have charged you, say, $1100.

It used to be that when he renewed your lease he could raise your rent only by the Stabilization Board's increase. Your rent went up maybe 5%. Your ceiling quietly went up 5% too. But that didn't matter because as long as you stayed there he couldn't charge you the ceiling+5%. He could charge only the preferential rent+5%.

The new rent laws allow him to revoke the preferential rent when you renew. So you might be paying roughly $1500 after ten years of 5% increases or thereabouts, but your ceiling has risen to roughly $1800. Suppose he wants to empty your apartment. He can now raise your rent from $1500 to a new rent based on the $1800 ceiling. Instead of the usual 5% increase over your current rent, he can raise your rent to 5% over the ceiling -- to $1890, a 26% increase over what you were paying. And he can impose this raise just to get you out or just because he doesn't like you: after you leave he can turn around, if he wants, and rent the apartment for the same rent you were paying before you left.

Suppose your rent ceiling was $1200 in 1986. After ten years of 5% increases, your ceiling is now over $2000. If you leave, the apartment is now decontrolled. The landlord can charge the new tenant anything he wants. Sky's the limit. 

Used to be that if your landlord overcharged you, you could take him to court and win triple damages -- he'd have to pay three times what he owed you in back rent. That's not so anymore. The landlord no longer runs any risk in falsely overcharging tenants. He has nothing to lose by illegally overcharging you.


So you see, tenants rights have eroded. To prevent aggressive landlords from evicting tenants unfairly, HPD has implemented an anti-harassment program. If anti-harassment measures are included in the zoning plan, HPD will not issue any construction or demolition permit to a landlord who has a record of harassing tenants on the premises. Harassment includes failing to make repairs, failing to respond to complaints, allowing the property to decline, failing to protect the premises from loiterers and drug dealers. Front doors, for example, that fail to close or lock invite drug trade and can be construed as harassment.

But revocation of preferential rent or demanding a luxury decontrolled rent way above market rate are not considered forms of harassment, so not all measures of vacating a building are prevented by anti-harassment measures. Also, enforcement of anti-harassment measures is not easy and is not adequately funded. But even if they could be enforced, will frightened tenants report harassment? (I'm one of the only tenants in my building who ever calls 311.) Do all tenants know their rights? (Virtually none in my building does.) The greater the likelihood of a negative answer to these questions, the less effective anti-harassment measures.

Worse still, emptying a building of tenants has become easy in our neighborhood quite independently of the erosion of tenant rights. Consider my building, an Old Law "dumbbell" tenement from 1889, 6 floors and a basement, 26 apartments altogether, sharing a boiler with an identical sister building next door. 80% of the tenants here are students and recent graduates who moved in on September 1st and will be gone by August 1st. Only the presence of a handful of rent controlled tenants prevents the landlord from emptying the building next September and developing luxury housing here. Rent controlled tenants are extremely difficult to evict.

(For those of you who resent your rent controlled neighbors for their low rents, consider that they are keeping the wrecking ball away from your home. And, btw, if you think that your rent would go down if their rents went up, think again. The market for rentals is so tight that their rents would rise to market level without lowering your rent at all. The only difference would be that instead of your stable old neighbor -- who will disappear, who knows where -- you'll have a couple of new students across the hall every September and it will be all the easier for the landlord to evict the lot of you. As the old Leadbelly song goes, "We in the same boat, brother.")


We're looking at a lot of potential development on eastern Houston and Delancey in the new plan. There's no sure way to determine what developers will do, but overdevelopment on Houston could adversely impact the LES especially between Houston and Delancey, raising real estate values and residential and commercial rents.

There is no guarantee that we will see any new affordable housing developed under this plan. Developers may merely renovate existing low income housing; developers may buy IZ bonuses from affordable housing that might have been built anyway under some other subsidy; developers may simply choose not to bother with the IZ FAR bonus.

Tenant protections are not strong enough to prevent displacement. The only protection from displacement is protection from overdevelopment. A 120 foot height cap on Houston, Delancey and D is an invitation to development. We don't want the affordable housing gained under IZ to be less than the affordable housing lost to primary and secondary displacement brought on by development and gentrification. If the IZ incentives result in a net loss of affordable housing, then there is no justification for the incentives.


Last July, the Department of City Planning (DCP) presented an unfinished plan including
1) a map with the basic zoning recommendations and
2) oral recommendations regarding IZ.
That plan was both tentative and partial; in particular, it was silent on commercial overlays, typically the last piece added to a zoning plan of such scope.

The Community Board responded to that plan with a list of desiderata: the CB asked
that the Orchard Street area be downzoned from commercial to residential,
that no commercial overlay be imposed on St. Mark's Place,
that 3rd and 4th Avenues, where NYU builds its dorms, be included in the zoning plan,
that contextual IZ (IZ with a height cap) be extended throughout the district,
that anti-harassment and anti-demolition measures be included in the zoning plan,
that data from DCP studies, including soft-site data, be made available to the Task Force and
that developers' 421-a tax abatement (see below) require the building of additional affordable housing over and above any constructed for an IZ bonus.

DCP has not yet responded to the CB's letter. But on Monday, October 16, DCP will present a finished plan to the CB Task Force. Later, on November 6, the CB will hold a public hearing at which the DCP will exhibit its finished plan.

The November 6 public hearing will not likely result in any changes to the plan: issues raised by the public at such hearings tend to represent a wide range of inconsistent and even contradictory views. They are often difficult or impossible to assimilate into a recommendation, and, in any case, all the members of the Task Force I have spoken with have uniformly expressed their endorsement for the essential items of the plan and their strong desire to see the plan moved forward with the greatest speed possible. So the November 6 meeting is really in the nature of a gesture to the public rather than a genuine invitation for organized public input. The desire to draw up the final proposal, or ULURP (Uniform Land Use Review Procedure), as soon as possible following the hearing has been variously expressed. And once the ULURP is drawn up, little can be changed -- only details.

The meeting on Monday, October 16 may, unfortunately, be the last opportunity for meaningful community input into the DCP proposal.

Anxious to push this plan through as quickly as possible, and viewing the public as a potential obstacle, the CB has done little to include the ordinary citizen until the very end of the process. The CB has made no attempt whatsoever to educate the public on zoning in general or on this plan in particular. The CB Zoning Task Force posted minutes of only four of its thirteen meetings despite repeated requests from residents to see them and despite the City Charter's requirement that a public record be kept of them (City Charter, Chap. 70, 2800 sec.d:9)

and the CB's own equally specific requirements under their by-laws (item VIII:E)

These minuteless meetings go back as far as September of last year. At this point it seems doubtful that such minutes exist or ever existed. Last time I asked for minutes of a meeting I was told, "You've been to the meetings, you know what we're doing" -- not the response one expects from a government agency to a request for minutes. Perhaps the distribution of this e-mail will result in the appearance of minutes on the CB website.

That said, I want to make clear that the DCP's plan contains one very great benefit to our community: a strict height cap of 80 feet on all development through the entire district (except Houston and Delancey and Avenue D). Under current zoning -- what we've got now -- developers can put together multiple lots (the larger the base, the taller the allowable height), buy "air rights" (the unused height from low buildings nearby, of which there are plenty down here) and build far above anything around. Include a "community facility" (could be just a room the size of an office), and build even higher. You can see the consequences today south of Houston where huge hotels are being raised in the midst of the historic tenements. The DCP plan will put an end to such towering developments through most of the district. That's good. That's very good.

But it's not all good. Although the height cap will help preserve the neighborhood, it is substantially higher than many of the buildings here, higher than "prelaw" (pre-1867) tenements, which generally rise only five stories, and row houses which often rise only four.

In fact, all the residential FAR's in the district are increased under the DCP's plan. This will allow developers to build bigger buildings "as of right."

A building constructed within the zoning FAR is built "as of right," which means the developer doesn't need any special permission from the CB or the city to build it or a variance from the Board of Standards and Appeals. Currently, our zoning provides as-of-right to 3.44 FAR residential structures, 6.2 if a community facility is included. Larger than that and the developer can be required to produce an Environmental Impact Statement or an Environmental Assessment Statement to gain approval of city agencies.

Under the DCP plan, as-of-right would extend to a 4.0 FAR construction through the entire district except Houston and Delancey which are being upzoned to 5.4 as-of-right.

In other words, the DCP plan represents a trade-off between greater as-of-right FAR and a contextual height cap: it will be easier for developers to build somewhat bigger and somewhat more densely here, but it will be much harder for them to build much higher and much bigger.

It's the use and abuse of the community facility bonus that tips the scale in favor of the new plan. The community facility bonus allowed much taller buildings with minimal benefit to the community. There is general consensus that the community facility bonus did great harm to the district and that neutralizing it is perhaps the single best aspect of the DCP plan.

Summarizing Part Three again: IZ upzoning could result in a net loss of affordable housing.
1. Upzoning Houston, Delancey & D invites developers to empty low-rent buildings where possible: primary displacement, loss of affordable housing.
2. Influx of 80% luxury housing raises surrounding real estate values and commercial rents, transforming neighborhoods, adding more intense pressure to evict current low-rent tenants: secondary displacement, loss of affordable housing.
3. Current low-income housing that has not had a subsidy for fifteen years can supply an IZ bonus if renovated: no gain in affordable housing.
4. Affordable housing bonuses can be bought and sold, do not have to be on site, can even extend a half mile outside the district where, perhaps, they can be further bought and sold (how watchful is the oversight? to what extent are the overseers in bed with the bonus-holders, sellers and buyers?), so the newly generated affordable units may not be seen in our district at all.
5. Affordable housing bonuses feed into a complex, busy, high-stakes market between affordable housing managers on one end and developers on the other, while the public -- the purported beneficiaries of all this complexity and business -- is kept on a list...a long list...waiting.
6. There is no guarantee that developers will even bother to take the IZ bonus. They can build 100% luxury within the 5.4 FAR in the upzoned areas.

The net result -- and the danger of IZ upzoning -- a paradoxical net loss of affordable housing.

This is particularly concerning because the affordable housing created by IZ is not *guaranteed* to residents displaced by its creation. It is reserved for those on the waiting lists which typically contain thousands of names. If development pressures cause you to lose your apartment, you don't automatically get affordable housing under IZ; you are dropped into a pool of waiting thousands.

50% of the affordable units will be dedicated to area residents, but that does little to ameliorate the problem -- before development, the resident had a real apartment in a building filled with other local residents; after an eviction and development, the former resident has become a name on a list with many hundreds of other local applicants and non local applicants, while the former residence now has only 20% of its space available for low-income applicants and of that, only10% to prior local residents. The numbers are all against the prior resident. Most likely the displaced will leave the neighborhood. Many years later, when their names are called up on the list -- if they ever are -- they will have already set roots down in another community.

The net IZ-upzoning result: loss of current community residents.

To make things worse, not all of the IZ-affordable housing is affordable to those who might be displaced. Only a small percentage may go to the lowest income level. Part of the 20% is reserved for low-middle income (80% of AMI), part for 50% of AMI and only what's left over for truly low income, 30% of AMI. We're not talking peanuts here, it's more like one peanut split into its many minute nutritious parts to feed a community the size of a small city.

Currently developers are given a tax break for building anything, no restrictions, south of 14th Street. But from 14th Street to 96th Street the tax break requires the construction of affordable housing. This policy dates back to 1971 when our neighborhood was abandoned by developers. Times have changed and even the mayor now recognizes that developers no longer need incentives to develop in our area. The affordable housing requirement should extend to our neighborhood now that the LES has become a development hot spot.

This looks like a winnable issue. See these links for the mayor's recently stated position:


The plan as we know it so far leaves some important issues unresolved. Based on several long and detailed conversations I have had with DCP and HPD (Housing Preservation and Development) and on statements from DCP's press officer, it seems that so far the DCP
1. has not included anti-harassment protections for tenants,
2. has not yet downzoned the Orchard Street area from commercial to residential,
3. has not committed to retaining the residential zoning of St. Mark's,
4. won't guarantee that the affordable units will be built at the site of the luxury units and
5. won't include 3rd and 4th Avenues where NYU builds its dormitories.

(1) We need anti-harassment measures to ensure that tenants are not evicted for the sake of new developments. Luxury decontrol, revocation of preferential rent, weakening of tenant protections and the prevalence of transient student renters have made it easier than ever for an aggressive landlord to empty a building. Whatever our zoning brings, we need adequate anti-harassment measures. And if the zoning gives incentives to development, we need protections all the more.

(2) When Orchard Street was zoned commercial, it was a charming clothing retail district. No one envisioned the area becoming a wild nightlife strip. The area needs zoning protection from further nightlife proliferation. A petition from area residents requesting residential zoning would be strategic.

(3) If St. Mark's is given a commercial overlay, it too will be overrun with yet more bars and restaurants, both on the lower "basement" levels and the upper stoop levels. Although our community board assures us that DCP will not impose such an overlay, DCP steadfastly refuses to commit publicly on the question. A petition here would be useful too.

(4) Personally, I would be happy if all the affordable housing were built in my part of Alphabettown and all the luxury housing were built as far away from me as humanly possible: I came to this neighborhood in the 70's because it was marginal, mixed and counterculturally unmonied. I don't care to live in a community of wealth -- it's not my thing. But some folks think "off site" affordable housing is unfair, ghettoizing and demeaning. De gustibus non est disputandem: there's no disputing taste. To me, "mixed" means ethnically and culturally diverse, not 80% luxury. In any case, off-site presents other problems including the difficulty of tracking the housing and the sale of bonuses.

(5) NYU's dorms bring hundreds of youth with no commitment to the neighborhood. And those students bring with them chain stores, fast food joints and bars that push out the interesting stores, the local services and the mom and pops. Including 3rd and 4th Avenues in the zoning plan will prevent NYU from building more out-of-scale dorms and flooding our neighborhood with more transient students.

The current zoning plan represents a tension between preservation (height cap) and the creation of affordable housing by offering developers an incentive to build bigger if they include some affordable housing. Affordable housing is a general good for the city, but the incentive invites development, bringing with it 80% luxury which can irretrievably alter the character of the community and cause a lot of displacement of older residents and businesses.

The CB cannot alone and by itself leverage the City to ensure that anti-harassment measures will be included, that residential areas will be protected from nightlife congestion, that the plan will be implemented fairly. Only community involvement and public pressure can ensure that we get the best possible rezoning.

On October 16, DCP will present its complete plan to the CB Task Force. We will see where they have imposed commercial overlays, whether they have downzoned the Orchard Street area, whether Avenue D remains upzoned for IZ and whether they have included anti-harassment measures. That meeting may be the last opportunity for significant input into the plan.

On November 6, the CB will hold a large public forum and exhibition of the plan at which DCP will parade it for the community to view. It seems doubtful to me that such an open forum could result in any effective change to the plan unless the community is highly organized around specific issues of concern.

Following the November exhibition-parade & forum, a ULURP (Uniform Land Use Review Procedure) -- essentially the final document -- will be drafted and submitted to the CB. The CB will have 60 days to hold a hearing and issue a recommendation to DCP. Then the Borough President has 30 days to submit his recommendation. DCP then has 60 days to hold a public hearing and adopt, adopt with amendments, or reject the plan. The City Council has 50 days to act on the plan. If the mayor doesn't veto within 5 days, it's law. The whole process takes 7 months.

Community residents have requested a preliminary viewing of a draft ULURP before the final ULURP is submitted. This will ensure that the community knows what the ULURP will contain. Given the Task Force's poor record of public disclosure, this request is exigent. The Task Force has made no commitment as of yet to a preliminary viewing of a draft ULURP.

Go to the Task Force meeting.
There is plenty to watch out for.
The Task Force meeting on Monday will likely be the last chance for meaningful community input.

Here's a list of questions that need to be asked:
1. How can the city guarantee that there will not be a net loss of affordable housing under the plan as a result of primary and secondary displacement?
2. Will the city guarantee on-site affordable housing?
3. Will the city impose commercial overlays?
4. Will the city downzone the Orchard Street area to residential?
5. How can anti-harassment measures be made effective, and will the city include effective anti-harassment measures and funding for their enforcement in the plan?
6. Will the public be presented with a draft ULURP for review prior to the submission of the ULURP?

Rob Hollander
LES Residents for Responsible Development
622 E 11 #10
NYC 10009